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15 July 2010

Getting Moral Rights Waived

Copyright, whatever may be said, is primarily an economic right which can be used to protect the monetary profits made of such things as literary, artistic, musical, dramatic, and cinematographic works. Moral rights are rights which exist independently of copyright. They were included in the Berne Convention as far back as 1928 and, in India, they are spoken of in Section 57 of the Indian Copyright Act as Special Rights. The Special Rights which Indian copyright law recognizes are basically the rights to paternity and integrity. The right to paternity is essentially the right of an author to claim authorship of his work and have it attributed to him, while the right to integrity allows an author to restrain or claim damages in respect of any distortion, mutilation, modification or other act done to his work which (i) would prejudice honour or reputation and (ii) is done before the expiration of the term of copyright in the work. Special Rights continue to vest in an author even after the copyright in the work is assigned either wholly or partially, as the statute clearly states and as was held in Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr., [AIR 1987 Delhi 13]. In addition to this, the right to integrity can be exercised by the legal representatives of the author.

There are exceptions though. The failure to display a work at all and the failure to display it to the satisfaction of its author are not considered to be an infringement of the rights conferred by Section 57. Also, when it comes to software, the authors of computer programmes cannot restrain those who lawfully possess a copy of their programmes from making backup copies as temporary protection against loss or from adapting the programmes to use them for the purpose for which they are supplied, or claim damages from lawful possessors for these acts.

Justice Pradeep Nandrajog spelt out the rationale behind moral rights in Amar Nath Singh v. Union of India. [2002(2)ARBLR130(Delhi); 2005(30)PTC253(Del)] saying, “In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral Rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights.”

It is fairly clear that Special Rights cannot be assigned. However, what is not quite as clear is whether Special Rights can be waived by an author under Indian law. The decision of the Supreme Court in the case of Centrotrade Minerals and Metal. Inc. v. Hindustan Copper Limited, 2006, [(2006) 11 SCC 245], states:

"A person may waive his right. Such waiver of right is permissible even in relation to a benefit conferred under the law. But it is trite that no right can be waived where public policy or public interest is involved. Jurisdiction on a tribunal/ court is a creature of statute. Jurisdiction on Arbitration can be conferred by agreement between the parties. But, the contract between the parties must be in obedience to law and not in derogation thereof. Contracting out is permissible provided it does not deal with a matter of public policy. An agreement under no circumstances can violate the Public Policy."

This has occasionally been interpreted to mean that moral rights, being legal rights, may be waived. The decision was, however, made in a non-copyright context, and its applicability to the realm of copyright is extremely debatable.

Globally, the situation varies quite a bit with some countries such as England (in the Copyright, Designs and Patents Act, 1988) and the US (in the Visual Artists Rights Act, 1990) allowing waivers of moral rights in some circumstances. Also, some countries define moral rights quite a bit more widely than India does. For example, in the UK, the law defines four moral rights: the rights to paternity, integrity, publicity and against false attribution. The right to publicity ‘controls’ how a photographer may use photographs of other people by allowing his subjects to place certain restrictions on the use of their photos. And the right against false attribution enables persons to ensure that they are not falsely represented to be the authors of works they did not create. In India, presumably, if a person were to try to protect these rights, it would have to be under the law of torts — the right to publicity has been recognised by the Indian judiciary — or the law of defamation. (In India, defamation is both a criminal and a civil offence,)

But, coming back to the waiver of moral rights, in India, since the statute is silent and case law is not entirely clear, the question is debatable. It might be possible to argue that moral rights are analogous to Fundamental Rights since Article 27(2) of the Universal Declaration of Human Rights, 1948 says that every person has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author, and the Supreme Court of India has, in recent years, been willing to read the provisions of international conventions into the corpus juris of India where there are lacunae in municipal law. Considering that this has not actually been done in the case of moral rights though, one can only make an educated guess about whether or not it would be done.

This, however, is academic and is not especially helpful when it comes to understanding what to do in a contract such as an author-publisher contract. In some contracts, especially those with certain British publishers, there are clauses which not only say that the author assigns his copyright to the publisher in the territory — with the Territory somewhat incredibly being defined as the Universe — but also that the author waives his moral rights. Where the agreement is governed by English law, this isn’t difficult to do. It may be unfair to the author especially since publishers sometimes come up with the far-fetched explanations of why they desire authors to waive moral rights but it is, nonetheless, legal.

The picture changes though when it comes to contracts governed by Indian law. Considering that the Indian position is unclear, there are a few options one has. Firstly, one could simply say that the author agrees to waive his moral rights in the contract. Secondly, one could say in one clause that the author agrees to waive his moral rights and add that that clause will be governed by Section 87(2) of the PDCA, 1987 of the UK, Section 14.1 of the Copyright Act, Canada or some other law which definitely allows waivers of moral rights. Thirdly, one could say that the author will not sue his publisher or some other person for the infringement of his moral rights. There are problems with all of these approaches though, and any agreement using any of them should contain a well-drafted severability clause. The problem with the first approach is clear enough — it may not be legally possible to waive moral rights under Indian law. The second approach would, in all probability, result in an agreement with dual governing laws which may not be desirable and which the courts may not be enthusiastic about enforcing. And the third approach would probably be struck down in view of Sections 23 and 28 of the Indian Contract Act, 1872. So, these approaches may not create any legal restraints in the enforcement of moral rights although they may of some value as psychological restraints.

A fourth approach would be to draft an agreement with a severability clause inter alia saying that notwithstanding anything contained in Section 57 of the Indian Copyright Act, an author will not be entitled to any damages, compensation, or remuneration on account his Special Rights; and that the decision as to whether any distortion, mutilation, or modification of an author’s work is prejudicial to his honor or reputation will lie with some other person (such as the publisher) and that the author agrees not to protest against or resist the decision of that other person. This approach would probably not fall foul of the law but would, for all practical purposes, have the same effect as a waiver of moral rights.

Update (2012): In essence, Section 57 was amended in 2012 so as to have the moral/special right to integrity subsist even after the expiry of copyright in the relevant work, and to enable not just the author but, now, also his legal representatives to exercise the right to paternity — presumably, this means that legal representatives may initiate legal proceedings if the author of a work is not credited as such. Moral rights for performers were also introduced into the statute.

Update (2015): In the case of Sartaj Singh Pannu v. Gurbani Media Pvt. Ltd. and Ors., 2015, decided by a Single Judge bench of the Delhi High Court, and brought to my attention by a colleague, Ameet Datta (Thanks, Ameet!), waivers of moral rights were touched upon. The court stated: "[....] the Court is not prepared to go as far as to deny the right of a Director to waive his right to be credited as such if for any reason he does not want his name to be associated with the film. As long as the waiver is voluntary, it cannot be said to be opposed to public policy." In my reading, whether this is useful to support any proposition other than that 'a voluntary waiver of attribution is possible by a person who anyway doesn't have a statutory moral/special right to it under Section 57 of the Copyright Act, 1957, flowing through Section 2 of the same Act' is debatable.

The decision does not analyse the relationship between statutory moral rights and public policy in any depth. As a matter of law, and basic statutory interpretation, any assertion relating to credit accorded to a director would likely be beyond the purview of moral rights contemplated by the Copyright Act. After all, the moral rights contemplated by the statute apply to authors, and a director, in his capacity as a director alone, is not an author (according to the statute's own definition in Section 2) even though it may be possible for him to become an author of works underlying the film he has directed depending on his contribution to those works.

This, however, is not what the decision highlights. On the contrary, it appears to have striven rather hard to bring the issue of credit due to or waived by a director within the purview of the Copyright Act. Considering the considerable lengths to which the decision has gone in this endeavour, and given how vague Section 16 of the statute is, it may be possible to use it to support a general proposition to the effect that any voluntary waiver of a moral right (to credit, at any rate) is permissible. Whether or not such a general proposition is sustainable though is another matter altogether which, presumably, time and more litigation will resolve.

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